Is it conscionable for private attorneys to bring child support establishment actions in South Carolina?

Recognizing that the title of this blog is provocative, I still rarely represent mothers seeking to establish child support and actively discourage most mothers from retaining me to do so. Given the preferential treatment such mothers receive when bringing these actions through the Department of Social Services (DSS), it is rare that I can honestly tell these mothers it makes sense to hire me instead.

First DSS charges a $25.00 fee for pursuing child support establishment and has streamlined procedures under South Carolina Code Title 63, Chapter 17, Article 5 that enables the Department to quickly reach a final resolution of the case. To file a private child support modification case requires a $150.00 filing fee, a $25.00 motion fee to set a temporary hearing, and a much greater time line to a final resolution (including, in Charleston, Berkeley and Dorchester Counties, mandatory mediation prior to trial). Further, filing through DSS makes payment of support through the court mandatory.

South Carolina’s Rule of Professional Conduct 1.5 prohibits an attorney from charging an “unreasonable fee.” Given that DSS staff attorneys won’t charge such mothers, it is the rare child support establishment case in which I can justify my fee as “reasonable.”

Further, given these streamlined procedures, the client is likely to get a quick final resolution if she has DSS handle child support establishment. Finally, under Article 5, issues of child custody and visitation cannot be brought up in a DSS child support case. While fathers can always file a separate action to establish visitation or custody, such claims are much more likely to be brought as part of a counterclaim in a private action than as a separate case.

No attorney’s fees, lower costs, quicker resolution, automatic pay-through-the-court, and no risk of counterclaims for custody or visitation are significant advantages that a DSS child support establishment case has over a private support action. For cases in which fathers are self-employed, may be hiding income, or make such substantial income that the guidelines do not apply (as of 2015, a combined income exceeding $360,000 per year), retaining private counsel to pursue child support establishment can be justified. However for the vast majority of case, I cannot simply justify representing these mothers unless they are adamant about not utilizing DSS’s services. It has been over a decade since I last handled one.